Can I leave my employer/sponsor after I have received my visa? The short answer is that it depends. We will explore the requirement of staying with the sponsor for the following visa subclasses.
- Subclass 186 – Employer Nomination Scheme Visa
- Subclass 482 – Temporary Skill Shortage Visa
- Subclass 494 – Skilled Employer-Sponsored Regional (Provisional) Visa
- Temporary Activity visa (subclass 408)- COVID-19
From 1 July 2024 visa conditions 8107, 8607 and 8608 are changing to help tackle worker exploitation and drive productivity as was outlined within the Migration Strategy.
Temporary Work (Skilled) (Sc 457) visa holders, Temporary Skill Shortage (Sc 482) visa holders and Skilled Employer Sponsored Regional (provisional) (Sc 494) visa holders who stop working with their sponsoring employer will have more time to find a new sponsor, apply for a different visa or arrange to depart Australia.
These visa holders will have up to:
- 180 days at a time, or
- a maximum of 365 days in total across the entire visa grant period.
During this time, visa holders can work for other employers. This includes work in occupations not listed in their most recently approved sponsorship nomination. This will ensure that visa holders can support themselves while they look for a new sponsor.
Unless exempt, a visa holder cannot work for another employer unless they have ceased work with their sponsoring employer. Visa holders must remain in their nominated occupation while working for their existing sponsor.
Sponsors must still let the department know if there is any change in situation within 28 days. This includes ceasing sponsorship or if a visa holder resigns.
Visa holders must not do any work that is inconsistent with any licence or registration needed for their nominated occupation. This includes any conditions or requirements they are subject to.
The changes apply to existing visa holders, as well as those granted a visa on or after 1 July 2024. Any periods a visa holder stopped working for their sponsor before 1 July 2024 will not count towards the new time periods outlined above.
Related: Changing Sponsors on a TSS 482 Visa
Leaving your employer when holding a Subclass 186 ENS visa
If you are thinking of leaving your employer after you have received your subclass 186 visa but is unsure of the implications, we got your covered. Let us go through what will happen if you leave your employer.
Subclass 186 Visa is a permanent visa which allows you to live, work and study in Australia indefinitely. When applying for this visa, you are required to provide the Department of Home (Department) Affairs with an employment contract. On the employment contract, it must state that the job position is available to you for at least two years. The purpose of the employment contract is to show the Department that your employer intends to sponsor you for at least two years which is a requirement of the visa.
Whilst the employment contract is binding on yourself and your employer, standard employment rules applies. That is, employee and employer are well within their rights to terminate an employment contract. So, once you have been granted the visa, it is possible for you to leave employment with your sponsor without the Department cancelling or revoking your visa.
It is not a visa condition that you stay with your sponsor for two years. Similarly, it is not a requirement that your sponsor employs you for two years. Therefore, after the visa is granted, if you or your employer’s situation changes, the Department would not penalise you for it however, the Department retains its discretion to revoke or cancel the subclass 186 visa if you provide incorrect and misleading information to the Department or you have not made a genuine effort to work in the role. The employer may also be sanctioned if the department is of the view that the application was not genuine. The adverse information could have implications for your citizenship application.
To illustrate, we will give you an example. John Smith obtained his subclass 186 visa and shortly after he informed his sponsor that he is leaving employment with them. The sponsor reports to the Department. The sponsor was able to locate a contract that was signed by the John Smith with another company before his visa was granted. In this situation, the Department would question if John Smith has provided the Department with false and misleading information with his intention to work with the sponsor.
In conclusion, whilst the Department is unlikely to cancel or revoke your visa, it is always better to do the right thing and stay with your employer. We recommend talking to us before making a decision.
Leaving your employer while on a subclass 482 – Temporary Skills Shortage Visa
Upcoming change in 2023: People working on Temporary Skilled Shortage visas will have six months instead of 60 days to be without an employer. During this period, they will have work rights.
Unlike the subclass 186 visa, the subclass 482 TSS visa is a temporary visa. As such, the Department has strict rules regulating applicant ending their employment. For this reason, it usually not possible to leave your employer if you would like to maintain your visa status.
All TSS visas have an 8607 condition imposed on it. To comply with the 8607 condition, the applicant must work in the nominated occupation for the business who is sponsoring them. This means that not only must you work for your sponsor, but you also cannot do or perform work that is different to your nominated occupation. For example, if the sponsor hires you to work as an Accountant (ANZSCO 221111), you cannot then be promoted and work as a Corporate General Manager (ANZSCO 111211). This may lead to a visa cancellation by the Department.
Nonetheless, it is possible to change your sponsor and leave your employment. However, your new employer is required to have a standard business sponsorship, and they must nominate you for the position. You are not required to lodge a new visa application unless your visa is expiring. If you commence work with a new employer before the nomination is approved, you are breaching your visa condition.
It is also crucial to note that the period you cease employment must not be more than 60 consecutive days. This is to provide you with time to look for another employer or explore other visa options. Your visa may be cancelled if you cannot find another employer/change visa in 60 consecutive days.
Therefore, it is best for all TSS visa holders to consider all the relevant implications before leaving your sponsor, as failure to comply with condition 8607 may lead to visa cancellation.
Leaving your employer when holding a Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa
Similar to the subclass 482 TSS visa, the Department has strict rules regulating who the applicant can work for on the 494 visa. One of the conditions on the subclass 494 visa is the condition 8608. Like the condition 8607, it states that the applicant can only work in the nominated occupation in the business that nominated them. The applicant is also required to commence work with the employer within 90 days of visa grant or on visa arrival if the applicant is outside of Australia at the time of the grant.
Changing occupation is possible; however, a new nomination is required to be approved before you can start working for your new employer. You must also not cease employment with the current sponsor for more than 90 consecutive days.
Visa holders may change their employer without needing to make a new 494 SESR visa application unless their visa is about to expire. However, they will still need a new nomination approved.
494 visa holders cannot, however, change their occupation without also applying for and being granted a new 494 visa.
That is, before a visa holder can change employer or occupation, a new nomination in relation to the visa holder must be lodged and approved.
The new employer will also be required to pay a new nomination training contribution charge (SAF levy) at the time of lodging a new nomination application, however the amount may be reduced depending on how many whole years have elapsed since the visa was granted.
The amount payable is calculated as follows:
Base amount (AUD3,000 or AUD5,000 depending on annual turnover) x ((5 – Elapsed years in visa period)/5)
Elapsed years in visa period is the number of whole years in the period:
- starting on the date of visa grant, and
- ending on the day the nomination is lodged
A 494 visa holder cannot begin work for a new employer until their nomination is approved. A visa holder that does so would be in breach of visa condition 8608.
Note: If a 494 visa holder subsequently applies for a Subclass 191 – Permanent Residence (Skilled Regional) visa, any previous failure to comply with visa conditions is relevant.
You want to change employers while holding a 408 AGEE visa
Due to the need for workers in Australia, Home Affairs has temporarily implemented a less restrictive policy on visa condition 8107 – work limitation for COVID-19 Pandemic event visa holders (and applicants), which allows them to work unrestricted.
COVID-19 Pandemic event visa holders may change employment and work for more than one employer, including self-employment. There is no need to contact the Department to advise of changes in employment.
A visa holder with condition 8107 may work in the critical occupation and position for which they were granted the 408 visa (COVID-19).
Condition 8107 does not allow visa holders to engage in work inconsistent with the activity in relation to which the visa was granted.
During the COVID-19 pandemic, only work in agriculture, food processing, health care, aged care, disability care and child care is considered to be in a critical sector.
Your boss Can’t cancel your visa
If you’re experiencing workplace exploitation, like being underpaid, we can help. You can ask for our help without fear of visa cancellation – even if you’ve breached your work-related visa conditions. Find out more: https://www.fairwork.gov.au/find…/visa-holders-migrants
Everyone working in Australia has the same minimum rights and protections at work, including visa holders. It’s against the law for your employer to pay you less than the minimum wages under your award or agreement.
Your employer can’t cancel your visa. If your boss has threatened to cancel your visa because you’ve raised a work issue, remember that only the Department of Home Affairs can grant, refuse or cancel a visa.
We have an arrangement with the Department of Home Affairs, called the Assurance Protocol, to help visa holders. Under the Assurance Protocol, your temporary visa will not be cancelled for breaches of your work-related visa conditions if you:
- had an entitlement to work as part of your visa
- believe you have been exploited at work
- have reported your circumstances to the Fair Work Ombudsman
- are assisting the Fair Work Ombudsman’s inquiries
- commit to abiding by your visa conditions in the future
- there is no other basis for cancelling your visa (such as on national security, character, health or fraud grounds).
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